Fatemi v. White et al

Filing 37

ORDER granting 28 Motion to Compel; denying 34 Motion for Protective Order and directing Plaintiff to produce documents, as set forth in this Order. Signed by Judge D. P. Marshall Jr. on 3/5/12. (kpr)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION PLAINTIFF NASRIN FATEMI v. No.4:11-cv-458-DPM CHARLES WHITE, in his official capacity; JAMES CLARDY, in his individual and official capacities; DEBRA FISER, in her individual and official capacities; JOHN DAY, in his individual and official capacities; UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES; and UNIVERSITY OF ARKANSAS SYSTEM DEFENDANTS ORDER The Defendants' motion to compel, Document No. 28, is granted. Fatemi should complete and sign the authorizations for release of her educational, employment, and medical records - all of which may lead to the discovery of admissible evidence about material issues. FED. R. Cry. P. 26(b)(1). Fatemi should also produce, for review and copying, the original tapes of her recorded conversations with the Defendants and other witnesses, as well as copies of any transcripts that currently exist. FED. R. Crv. P. 26(b)(3)(C)(ii) & 34(a)(1)(A). Her claim of work-product in these materials is waived, having never been the basis of a timely objection. FED. R. CIV. P. 33(b)(4). And the tapes should be produced now, not after the parties to the conversations have been deposed. The Court acknowledges the split of authority about the timing of production. 8 C. WRIGHT, A. MILLER & R. MARCUS, FEDERAL PRACTICE & PROCEDURE § 2015 (3d ed. 2010). But in the circumstances, the Court is convinced that Costa v. AFGO Mechanical Services, Inc., 237F.R.D. 21 (E.D. N.Y. 2006), and like cases are the better-reasoned precedent. See also Babyage.com, Inc. v. Toys "R" Us, Inc., 458 F. Supp. 2d 263 (E.D. Pa. 2006); cf Torres-Paulett v. Tradition Mariner, Inc., 157F.R.D. 487 (S.D. Cal. 1994); Manske v. UPS Cartage Services, Inc., 2011 WL 322002 (D. Maine 30 January 2011). First, the conversations almost certainly contain substantive evidence about Fatemi's claims. Second, Fatemi made these tape recordings surreptitiously and without the consent or knowledge of the other parties to the conversations. Those circumstances, Costa, 237 F.R.D. at 24-25, weigh against delaying production of that information until a time more favorable to Fatemi. * * -2­ * Motion to compel, Document No. 28, granted. Motion for protective order, Document No. 34, denied. The Court directs Fatemi to complete and sign the authorizations included in the Defendants' discovery requests, and produce the original conversation tapes for review and copying (as well as any transcripts that currently exist), by 16 March 2012. So Ordered. D.P. Marshall Jr. United States District Judge 5 March 2012 -3­

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